ARSHAD ALI ANJUM Versus REGISTRAR, TRADE UNIONS, LAHORE REGION, NORTH ZONE, LAHORE , Mushtaq Masood, Malik Saeed Hassan and Quraishi Muhammad Hafeez
ORDER
Through this Constitutional petition the petitioner has sought declaration against the proceedings initiated by the Registrar of Trade Unions, Lahore, which are pending before him for registering the change in the office bearers.
2. The brief facts are that the United Labour Union, of which the petitioner is Patron-in-Chief, is a Trade Union/CBA (hereinafter referred to as the Union) of the workers of State Bank of Pakistan, Lahore. The membership of the Union is open to Assistant, Senior Assistants, Coin and Note Examiners (Grades 2 and 1) Officers Grade-3, Assistant Treasurers and non-Clerical Staff `D' Class etc. The functions of the Union are carried out by the Executive Body consisting of various office-bearers who are elected by the General Body for a term of two years, unless the General Body otherwise decides. The regular elections of the Executive Body were held on 3-3-1994, result whereof was communicated to the Registrar, Trade Unions (respondent No. 1) on 5-3-1994, who vide order dated 6-3-1994 (Annexure "A") addressed to the Patron-in-Chief and Secretary-General of the Union approved the change in the office-bearers of the Union and amendment in the Constitution. It is the common ground that differences arose between some of the office bearers which resulted in two rival Groups within the Union, therefore, necessity to hold fresh elections was felt by both the Groups.
3. According to the writ petition on 21-9-1994 notice was issued to hold fresh elections of the Union and accordingly on 29-9-1994 elections were held, electing new office-bearers. The same day, i.e. 29-9-1994 the present petitioner and Muhammad Hanif Ramay, Secretary-General of the union, submitted applications to respondent No. 1 for approval of the change in the office bearers in accordance with section 8 of the Industrial Relations Ordinance, 1969. The list of such newly elected office-bearers is given in Annexure "D".
4. On 1-12-1994 report and para-wise comments were called from respondent No.1 and record was also summoned for 11-12-1994. An interim order was also issued to the effect that the office-bearers elected in the elections held on 29-9-1994 would continue functioning. This order was modified on 11-12-1994 and the office-bearers were restrained from dealing with the funds of the Union in any manner. Vide order dated 20-12-1994 1 formally issued pre-admission notice to respondent No.4, who is the main contestant on behalf of the rival group. The Registrar, Trade Unions (respondent No.1) submitted parawise comments. Respondent No.4 also filed written statement and claimed that the President and the General Secretary of the Union notified on 5-9-1994 to hold meeting of the General Body of the Union on 22-9-1994 for electing new office-bearers of the Executive Body and accordingly elections were held on 22-9-1994, result whereof was notified to respondent No. 1 for registering the change in office-bearers in accordance with section 8 of the Industrial Relations Ordinance, 1969 on 29-9-1994.
5. In response, the Registrar required both the groups to produce the relevant records for verification of the proceedings of the elections. The Registrar, Trade Unions (respondent No.1) appointed respondent No.2 as Inquiry Officer to hold inquiry into the conduct of elections, as claimed by both the groups. According to paragraph 2 of the report/written statement submitted by respondent No.1, an inquiry was held on 9-10-1994 by respondents 2 and 3 who also recorded the statements of 836 members of the Union who appeared before them at the spot. The petitioner and respondent No.4 and other members of their respective Groups participated in the inquiry. The Inquiry Officer submitted report to respondent No.1 on 10-10-1994. He reported that 438 members supported the election proceedings dated 22‑9‑1994 whereas 398 members supported the election proceedings held on 29‑9‑1994. The report further stated that respondent No.1 was to announce decision on 10‑10‑1994, but meanwhile status quo order dated 10‑10‑1994, issued by the Presiding Officer, Punjab Labour Court No.1, Lahore, was received by him, therefore, final order under section 8 of the Industrial Relations Ordinance, 1969 could not be passed by him.
6. As stated, on 10‑10‑1994 before final order could be passed by respondent No.1, the writ‑petitioner and another submitted an application under section 8(7) of the Industrial‑Relations Ordinance to the Punjab Labour Court No.1, Lahore, for setting aside the inquiry report dated 10‑10‑1994 and issuance of direction to the Registrar (respondent No.1) to approve the change in the office‑bearers which took place on 29‑9‑1994 in consequence of the elections of the said date, on which the aforesaid status quo order was passed on 10‑10‑1994. During the pendency of this petition before the learned Labour Court, the Patron‑in‑Chief of the Union filed the present writ petition.
7. Respondent No.1 raised a preliminary objection in the parawise comments in the following words:‑‑
"The writ petition is not maintainable as remedy is available under section 8(7) of the industrial Relations Ordinance, 1969 with regard to the dispute of the office‑bearers and against the order of the replying respondent in case of refusal to register the change. The petitioner has already approached the Punjab Labour Court No‑1 in the instant case and obtained a status quo order and the next date of hearing is now fixed for 12‑12‑1994. The replying respondent has not so far passed any order with regard to the registration or refusal regarding change of office‑bearers of any group and the proceedings in said behalf are pending decision after holding the inquiry. The decision could not be taken because of an order of status quo passed by the learned Presiding Officer, Punjab Labour Court No‑1, Lahore:'
8. Similarly, a preliminary objection was taken by respondent No.4 in his a written statement in the following terms:‑‑
"That an alternate/adequate remedy is available to the petitioner under section 8(7) of the I.R.O., 1969 to file an application with regard to the dispute in relation to the office‑bearers of the Union before the Labour Court hence the writ petition cannot be filed in this honourable Court."
Another preliminary objection was raised by respondent No.4 in his written statement, which is to the following effect:‑
"The petitioner has himself chosen to file the application under section 8(7) of the I.R.O., 1969 before the Punjab Labour Court No.1, Lahore on 10‑10‑1994 and the case is still pending before the said competent Court and the next date of hearing is fixed as 12‑12‑1994."
9. Lengthy arguments were addressed by the learned counsel for the parties on merits as well as the maintainability of this writ petition. Mr. M.S. Baqir, learned counsel for the petitioner submitted that the Registrar (respondent No.1) acted without jurisdiction in initiating inquiry proceedings through respondents 2 and 3 which act, according to him, aimed at nullifying the effect of elections held on 29‑9‑1994. He also submitted that respondent No.1 had no power to entertain another application in relation to the elections, therefore, the subsequent application submitted to him by respondent No.4 could not be entertained. He vehemently denied that any election was held on 29‑9‑1994, by the rival group and, therefore, argued that since only one election was held on 29‑9‑1994, the Registrar was obliged to accord approval to the change made in the office‑bearers in consequence of the elections dated 29‑9‑1994. He referred to section 13 of the Industrial Relations Ordinance, 1969, which enumerates the powers and functions of the Registrar. section 13 is as follows:‑‑
"13. Powers and functions of Registrar .‑‑‑(1) The following shall be the powers and functions of the Registrar:‑‑
(a) the registration of trade unions under this Ordinance and the maintenance of a register for this purpose;
(b) to lodge, or authorise any person to lodge, complaints with the Labour Court or Commission for action, including prosecution, against trade unions, employers, workers or other persons for any alleged offence of any unfair labour practice or violation of any provision of this Ordinance or for expending the funds of a trade union in contravention of the provisions of its Constitution;
(c) 'the determination of the question as to which one of the trade unions in an establishment or an industry is entitled to be certified as the collective bargaining agent in relation to that establishment or industry: .
(cc) to inspect the accounts and record of the registered trade unions,. Or investigate or hold such inquiry as he deems fit, either himself or through any officer subordinate to and authorised in writing, in this behalf by him; and
(d) such other powers and functions as may be prescribed."
10. Section 8 of the Industrial Relations Ordinance, 1969, on which learned counsel for both the parties relied, is as follows:‑
"8. Registration .‑‑‑(1) Registrar, on being satisfied that the trade union has complied with all the requirements of this Ordinance, shall register the trade union in a prescribed register and issue a registration certificate in the prescribed form within a period of fifteen days from the date of receipt of the application. In case the application is found by the Registrar to be deficient in a material respect or respects he shall communicate in writing his objections to the trade union within a period of 15 days from the receipt of the application and the trade union shall reply thereto within a period of fifteen days from the receipt of the objections.
(2) When the objections raised by the Registrar have been satisfactorily met, the Registrar shall register the trade union as provided in subsection (1) and issue a certificate of registration in the prescribed form within three days of the date of the objections having been so met. In case the objections are not satisfactorily met, the Registrar may reject the application.
(3) In case the application has been rejected or the Registrar has delayed disposal of the application beyond the period of fifteen days provided in subsection (1) or has not issued a certificate of registration within a period of three days as provided in subsection (2) as the case may be, the trade union may appeal to the Labour Court who for reasons to be stated in its judgment may pass an order directing the Registrar to register the trade union and to issue a certificate of registration or may dismiss the appeal.
(4) Notwithstanding anything contained in any other provision of this Ordinance, every alteration made in the constitution of a registered trade union and every change of its officers shall be notified by registered post by the trade union to the Registrar within fifteen days of such change.
(5) The Registrar may refuse to register such change or alteration if it is in contravention of any of the provisions of this Ordinance, or if it is in violation of the constitution of the trade union.
(6) Subject to the provisions of subsection (5) every inclusion or exclusion of any constituent unit of a federation of trade unions shall be notified by registered post by the federation to the Registrar within fifteen days of such inclusion or exclusion.
(7) In case there is a dispute in relation to the change of officers of a trade union, or any trade union is aggrieved by refusal of the Registrar (Sharif Hussain Bokhari, J) under subsection (5) any officer or member of the trade union may, apply or appeal to the Labour Court, who shall within seven days of receipt of the application. or appeal, as the case may be, pass an order either directing the Registrar to register the change or alteration in the constitution or in the officers of the trade union, or may, for reasons to be recorded in writing, direct the Registrar to hold fresh elections of the union under his supervision."
11. Learned counsel for the petitioner referred to subsection (5) of 4 Section 8 to contend that the Registrar can refuse to register the change in 6ffice‑bearers only when it is shown to him that the change was made in contravention of any of the provisions of the Industrial Relations Ordinance, or in violation of the constitution of the trade union. According to him, since both these conditions were not present, the Registrar was under obligation to register the change which took place on 29‑9‑1994 and was notified to him by the petitioner, and by not doing so he has acted without jurisdiction.
12. Learned counsel for the petitioner further contended that under section 8(5) of the Industrial Relations Ordinance, read with Rule 4 of the Punjab Industrial Relations Rules, 1973, no such inquiry as ordered by the Registrar through respondents 2 and 3 is contemplated, therefore, the same is a nullity in law. He referred to Karachi Warehouse and Carriers Workers' Union v. Pakistan Warehouse Carriers Workers' Union and 3 others (PLD 1978 Karachi 417) to contend that the inquiry report submitted by the Inquiry Officer as to be ignored and the Registrar is to act upon the application submit by the petitioner with regard to elections of 29‑9‑1994 and the changes made in office‑bearers in consequence thereof.
13. On the question of alternate‑adequate remedy learned counsel for the petitioner referred to the Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279) to contend that since the Registrar has acted without jurisdiction, the writ petition is competent in this Court without availing the alternate remedy before the learned Labour Court.
14. Ch. Mushtaq Masood, learned counsel for respondent No.4, denied the allegations made by the learned counsel for the petitioner and submitted that as a matter of fact, fresh elections took place on 22‑9‑1994. According to him, every such change could be notified to the Registrar by the union within fifteen days of such change, as provided under subsection (4) of section, 8 of the Industrial Relations Ordinance. Since the change which took place on 22‑9‑1994 was notified to the Registrar on 29‑9‑1994, the mandatory previsions of section 8 ere followed and, accordingly, the Registrar was bound to register the said change. He also contended that the Registrar had power to appoint Inquiry Officer to make inquiry in accordance with Rule 8 of the said Rules read with section 13(1)(CC) of the Ordinance. He also referred to subsection (7) of section 8 of the ,Ordinance and contended that the aggrieved party against the order of the Registrar has the remedy before the Labour Court.
15. The representative of the Registrar, Trade Unions, who appeared in r Court on almost all the dates of hearing, admitted that inquiry was ordered to be conducted and the report was also submitted by the Inquiry Committee t the Registrar, but submitted that no order had yet been passed by the Registrar, therefore, the writ petition was premature.
16. Without going into the merits of the case, the present writ petition can be disposed of on the basis of the preliminary objection that the Registrar, 'Trade Unions (respondent No.1) has not so far given any decision one way or the other. He has yet to pass order to register the change or refuse to register the change which took place on 29‑9‑1994, as claimed by the petitioner , or which, according to respondent No.4, took place on 22‑9‑1994. Under subsection (4) of section 8 of the Ordinance every change in the office‑bearers of the Union is to be notified to the Registrar of Trade Unions, by registered post, within fifteen days of such change, and the Registrar, under subsection (5) of section 8 may refuse to register such a change if the same is in contravention of any of the provisions of the Industrial Relations Ordinance, or if it is in violation of the Constitution of the Union. In the absence of these two situations, the Registrar shall register the change with regard to the office -bearers so notified to him by the Trade Union.
17. Admittedly, the Registrar has not passed any order so far refusing to register or certifying the change in the office‑bearers of the Union. He has also not given many decision whether any election was held on 22‑9‑1994 or 29‑9‑1994. In this view of the matter, it is quite clear that the writ petition is premature. In somewhat similar circumstances, a learned Division Bench of this Court in Sheela B. Charles 'v. Election Tribunal (1995 CLC 344) observed as follows:‑‑
"The impugned order dated 9‑8‑1994 has not finally disposed of the matter and decided the election petitions. Even after the recount of the ballot papers, as directed by the learned Election tribunal, the election petitions have to be finally decided by the learned Election Tribunal. The impugned order will merge in the final decision of the Election Tribunal, which is subject to appeal before the Hon'ble Supreme Court under section 67 of the Representation of the People Act, 1976. The impugned order is only an interlocutor one, therefore, cannot be challenged in these writ petitions unless shown to be without jurisdiction. The Hon'ble Supreme Court has held in the case of "Ijaz Shafi v. Ali Ashraf Shah" (PLD 1994 SC 867) that objection' with regard to non‑maintainability of appeal against interlocutory order of the Tribunal is correct as per scheme of the said Act and legal position enunciated in the case‑law on the subject. The petition is still pending before the learned Tribunal and final order is yet to be passed against which appeal could competently be filed before the learned Supreme Court. In this judgment the Hon'ble Supreme Court has also relied on its previous judgments in the cases of "Mahmood Azam Faruqui v. Maulana Muhammad Shafi" (1974 SCMR 471), Mian Zahid Sarfraz v. Raja Nadir Pervaiz" (1987 SCMR 1107), "Habibul Wahab Alkhairi v. Shaikh Rashid Ahmad" (PLD 1989 SC 760) and "Bhagwandas v. The Returning Officer"‑(1990 SCMR 1228):"
Further, under subsection (7) of section 8 of the Industrial Relations Ordinance, where there is a dispute in relation to the change of office‑bearers of a Trade Union, or when the Trade Union is aggrieved by the refusal of the Registrar to register change under subsection (5) of section 8 any officer or a member of the Trade Union may apply to the Labour Court concerned, or may file appeal before the Labour Court against the decision/order of the Registrar. The Labour Court is empowered to direct the Registrar to register the change, or may, for reasons, direct the Registrar to hold fresh elections of the union under his own supervision.
At this stage, the writ petition is not competent as no final order has been passed by the Registrar, Trade Unions (respondent No. 1) on the application of the petitioner or that of respondent No.4, and even if he refuses the application of either party, adequate and efficacious remedy is provided under subsection (7) of section 8 of the Industrial Relations Ordinance.
18. In the light of the above discussion the present writ petition is not competent and is accordingly dismissed in limine.
AA./A‑790/L Petition dismissed